[Federal Register Volume 63, Number 219 (Friday, November 13, 1998)]
[Proposed Rules]
[Pages 63436-63442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30294]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 648 and 649
[Docket No. 981026267-8267-01; I.D. 100798B]
RIN 0648-AL36
Fisheries of the Northeastern United States; American Lobster
Fishery; Fishery Management Plan (FMP) Amendments to Achieve Regulatory
Consistency on Permit Related Provisions for Vessels Issued Limited
Access Federal Fishery Permits
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed rule and request for comments to
implement measures contained in Amendment 11 to the Summer Flounder,
Scup, and Black Sea Bass FMP; Amendment 7 to the Atlantic Mackerel,
Squid, and Butterfish FMP; Amendment 11 to the Atlantic Surf Clam and
Ocean Quahog FMP; Amendment 8 to the Atlantic Sea Scallop FMP;
Amendment 10 to the Northeast Multispecies FMP; and Amendment 7 to the
American Lobster FMP. These amendments would implement regulations to
achieve regulatory consistency on vessel permitting for FMPs which have
limited access permits issued by the Northeast Region of the NMFS. The
proposed regulations are intended to facilitate transactions such as
buying, selling, or upgrading commercial fishing vessels issued limited
access permits. Consistency on these regulations is especially
important for vessels which have limited access permits in more than
one fishery in the Northeast Region.
DATES: Public comments must be received on or before December 28, 1998.
ADDRESSES: Comments on this proposed rule should be sent to Jon C.
Rittgers, Acting Regional Administrator, Northeast Region, NMFS, 1
Blackburn Drive, Gloucester, MA 01930. Mark the outside of the
envelope, ``Comments on Proposed Rule for Permit Consistency.''
Copies of these amendments, the regulatory impact review, and the
environmental assessment are available from the Executive Director,
Mid-Atlantic Fishery Management Council, Room 2115 Federal Building,
300 S. New Street, Dover, DE 19904-6790, or the Executive Director, New
England Fishery Management Council, 5 Broadway, Saugus, MA 01906-1036.
Comments regarding the collection-of-information requirements
contained in this proposed rule should be sent to the Acting Regional
Administrator, Northeast Regional Office, and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy
Analyst, 978-281-9279.
SUPPLEMENTARY INFORMATION: This proposed rule would implement
amendments to the Summer Flounder, Scup, and Black Sea Bass FMP;
Atlantic Surf Clam and Ocean Quahog FMP; Atlantic Mackerel, Squid, and
Butterfish FMP; Atlantic Sea Scallop FMP; Northeast Multispecies FMP;
and to the American Lobster FMP.
Summary of Proposed Measures
These proposed amendments would consolidate measures governing
permit-associated activities for all Northeast Region FMPs that have
limited access permits. None of the proposed measures would apply
retroactively. The measures would (1) allow a one-time vessel upgrade/
replacement allowance of 10 percent in size (length overall (LOA),
gross registered tons (GRT), and net tons (NT)), or 20 percent in
horsepower (HP) for all limited access permits except American lobster
(an engine HP increase may be performed separately from a vessel size
increase); (2) require that the fishing and permit history of a vessel
and the replacement vessel be owned by the same person when
transferring limited access permits to replacement vessels; (3) allow
voluntary replacement of vessels, regardless of vessel condition; (4)
require that the fishing and permit history of a vessel transfer with
the vessel whenever it is bought, sold or otherwise transferred, unless
there is a written agreement between the buyer and seller, or other
credible written evidence, verifying that the seller is retaining the
vessel's fishing and permit history for purposes of replacing the
vessel; (5) set the effective date of the final rule implementing the
FMP amendments as the vessel baseline specification date for FMPs
without baselines (scup, Loligo/butterfish, Illex, black sea bass,
mahogany quahog); (6) set the effective date of the final rule
implementing the FMP amendments as the revised replacement baseline
date
[[Page 63437]]
and the newly established upgrade baseline date for the summer flounder
FMP; (7) authorize the permanent voluntary relinquishment of permit
eligibility; (8) implement a restriction on permit splitting; and (9)
require a one-time Confirmation of Permit History (CPH) registration
and an annual permit renewal. For the American Lobster FMP, the
amendments would prohibit permit splitting and require a one-time CPH
registration.
Background
Current limited access vessel permit regulations for FMPs in the
Northeast Region were developed by the Mid-Atlantic Fishery Management
Council (MAFMC) and New England Fishery Management Council (NEFMC) over
a period of many years. As a result, the FMPs differ widely on
important provisions regarding vessel replacement and upgrade, permit
history transfer, permit splitting, and permit renewal. The current
regulations are not only inconsistent among FMPs, they are also, in
some instances, overly restrictive. This has proven to be confusing and
inefficient, especially for the approximately 2,079 vessels which
possess more than one limited access Federal fishery permit. Routine
business transactions, such as the sale or purchase of a vessel, have
become unnecessarily complicated because of these differences. In a
worst case situation, four different sets of guidelines would need to
be interpreted by both industry and NMFS if a vessel with multispecies,
summer flounder, black sea bass, and scup limited access permits was
bought, sold, or upgraded.
These proposed measures were developed at the MAFMC Comprehensive
Management Committee meeting on February 27, 1998. In March 1998, the
MAFMC voted to accept the measures for public hearings. Simultaneously,
the Interspecies Committee of the NEFMC approved these measures for
public hearing. Due to a lack of Council staff time, NMFS staff
prepared a draft environmental assessment (EA) and regulatory impact
review (RIR) during May 1998 to facilitate the public hearing process.
The MAFMC approved the EA and Public Hearing Document on June 3, 1998.
The NEFMC approved the EA and Public Hearing Document on June 24, 1998.
Public comments on the draft EA/RIR were accepted from June 24, 1998,
to August 5, 1998. Public hearings were conducted in Riverhead, NY
(July 20, 1998), Toms River, NJ (July 21, 1998), Norfolk, VA (July 21,
1998), and Peabody, MA (July 30, 1998). The MAFMC reviewed the public
hearing comments and voted to approve the amendments for the summer
flounder, scup, and black sea bass; Atlantic mackerel, squid, and
butterfish; and Atlantic surf clam and ocean quahog FMPs for submission
to the Secretary of Commerce (Secretary) on August 20, 1998. The NEFMC
voted to approve the amendments for the NE multispecies, Atlantic sea
scallops, and American lobster FMPs for submission to the Secretary on
September 24, 1998.
The following section describes problems with the existing
regulations and explains how the proposed amendments would address
these problems.
Vessel Ownership Restrictions
A regulation affecting scup, Illex, Loligo/butterfish, and mahogany
quahog permits currently requires that, when replacing an existing
vessel with another vessel and transferring permits, the existing
vessel and the replacement vessel must be owned simultaneously by the
same person. This has proven to be impractical because most vessel
owners must sell their current vessel in order to purchase a
replacement vessel. Without these changes vessel owners who must use
the proceeds from the sale of one vessel to finance the purchase of
another vessel may be unable to procure a replacement vessel.
The proposed amendments would eliminate the requirement that both
vessels are owned simultaneously at the time of replacement in these
FMPs. The owner of the replacement vessel would only need to possess
the fishing and permit history of a limited access vessel to transfer
the permit to an otherwise qualified replacement vessel. To facilitate
this, the proposed regulations establish procedures to provide a CPH,
which would retain a vessel's fishing and permit history. The CPH would
remain valid until it is used to issue a permit to an otherwise
qualified replacement vessel.
Vessel Replacement Restrictions Based on Vessel Condition
A current provision affecting some Mid-Atlantic permits (scup,
Illex, Loligo/butterfish, and mahogany quahogs) requires that a vessel
must sink or be declared unseaworthy by the U.S. Coast Guard before it
can be replaced. Under these regulations, a vessel cannot be replaced
voluntarily if it is simply old or in disrepair, so an owner may have
to keep fishing with the vessel until it burns or sinks. This
requirement compromises vessel safety, diminishes an owner's
flexibility to replace a vessel at a time when the owner deems
appropriate, and prevents owners from taking timely advantage of
opportunities to purchase new vessels. Furthermore, this requirement
serves no conservation purpose. The proposed amendments would allow for
voluntary vessel replacement at a time when an owner chooses for all of
the FMPs with limited access permits.
Differences in Permit History Transfer Regulations Among FMPs
The regulations governing permit history transfers would be amended
to be consistent among FMPs. Under current black sea bass,
multispecies, Atlantic sea scallop, and American lobster regulations,
fishing and permit history may be separated from a hull when a vessel
is sold, if there is a written agreement between the buyer and the
seller. However, under the summer flounder, scup, Illex, Loligo/
butterfish, and mahogany quahog requirements, permit eligibility always
transfers with the vessel if it is sold. This inconsistency regarding
how permit histories are transferred is important because it affects
the manner in which people can enter or retain access to limited access
fisheries. The proposed amendments would allow the fishing and permit
history of a vessel to be retained by a seller (with written agreement
from the buyer) for all limited access permits. As a result, the
fishing industry will gain more flexibility when buying and selling
vessels.
Differences Among FMPs in Vessel Replacement and Upgrading Existing
Vessels
Current regulations prohibit increasing the size and HP of a
replacement vessel at the time of replacement for vessels with black
sea bass, scup, Illex, Loligo/butterfish, or mahogany quahog limited
access permits. These regulations, however, do allow for an existing
vessel to have length added and a larger, more powerful engine
installed. This confounds measures to control effort and capitalization
in these fisheries, over the long term.
The summer flounder, multispecies, and Atlantic sea scallop
regulations allow, for vessel replacement purposes, a one-time HP
increase that may not exceed 20 percent of the HP of the vessel
replaced and a one-time increase of up to 10 percent in each of the
specifications for vessel size (length, GRT, and NT), all of which must
be performed at the same time. A vessel size upgrade may be performed
separately from an engine HP upgrade.
The proposed amendments would allow a one-time upgrade or
[[Page 63438]]
replacement allowance of 10 percent in each of the specifications for
vessel size (GRT, NT, and length) and a 20 percent increase in HP for
all FMPs with existing replacement or upgrade restrictions (excluding
the American lobster FMP). The proposed amendments would (1) establish
vessel baseline specification dates for FMPs without baselines (scup,
Loligo/butterfish, Illex, black sea bass, mahogany quahog); (2)
establish an upgrade baseline specification date for the summer
flounder FMP; and (3) revise the summer flounder FMP replacement
baseline specification date. These baseline specification dates will be
the effective date of the final rule.
Differences on Permit Splitting and Permit History Transfer Among FMPs
The multispecies FMP does not allow a multispecies permit to be
issued to a vessel if its fishing or permit history has been used to
qualify the vessel for another limited access Federal fishery. This
``permit-splitting'' prohibition was intended to prevent an increase in
fishing effort and capitalization. The problem is that only the
multispecies FMP has the ``no-splitting'' provision. Because of this, a
multispecies permit could be revoked for circumstances that are not in
that permit holder's control. This could occur when a vessel with both
multispecies and scup, or certain other permits, is sold. The seller
could retain the multispecies permit and transfer it to another vessel.
The buyer would still be eligible for the scup permit because it
transfers with the vessel under current scup regulations and the
regulations in other FMPs. However, due to the prohibition on permit-
splitting in multispecies, if the scup permit is issued, the
multispecies permit would have to be canceled.
The proposed regulations would prohibit permit splitting in all
FMPs. This has the effect of keeping all ``permit packages'' intact.
The adoption of this rule and all of its proposed measures allowing for
voluntary vessel replacement and for the retention in writing of
limited access permits, makes it necessary that NMFS adopt a
prohibition against permit splitting in all FMPs with limited access
permits. Otherwise, through the use of permit splitting, overall fleet
capacity may increase, thereby negating the benefits gained from other
management measures. The proposed amendments would also avoid the
situation described above where a permit has to be canceled for reasons
that are beyond a permit holder's control.
Voluntary Relinquishment of Permit Eligibility
There are situations where it is advantageous or desirable for a
vessel owner to relinquish a permit voluntarily. For example, if
frequent reporting is required; or if it is necessary to choose between
different baselines; or if it is possible to take advantage of the
unrestricted vessel upgrade allowance in the lobster fishery. The
proposed amendments allow for the voluntary permanent relinquishment of
permit eligibility allowing more flexibility to limited access permit
holders.
Technical Changes
Amendment 2 to the summer flounder FMP established the vessel
permit moratorium, which was initially to expire after 1997. Amendment
10 to the summer flounder FMP extended the moratorium indefinitely (62
FR 63872, December 3, 1997), but Sec. 648.4(a)(3)(i) was not revised as
necessary. This inadvertent omission is being corrected in this
rulemaking.
Classification
At this time, NMFS has not determined that the amendments that this
rule would implement are consistent with the national standards of the
Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws. NMFS, in making that determination will take into
account the data, views, and comments received during the comment
period for this proposed rule.
This proposed rule has been determined to be significant for the
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities.
NMFS' standards for criteria to determine if a regulatory action is
significant include: (1) a decrease in annual gross revenues of more
than 5 percent for 20 percent or more of the affected small entities;
(2) an increase in total costs of production of more than 5 percent as
a result of an increase in compliance costs for 20 percent or more of
the affected small entities; (3) compliance costs as a percent of sales
for small entities that are at least 10 percent higher than compliance
costs as a percent of sales for large entities for 20 percent or more
of the affected small entities; (4) capital costs of compliance that
represent a significant portion of capital available to small entities,
considering internal cash flow and external financing capabilities; or
(5) 2 percent of the small business entities affected being forced to
cease business operations.
A substantial number of entities may be directly or indirectly
impacted by this proposed action because all of the vessels (4,430) in
these fisheries are small entities and hold at least one limited access
moratorium permit in the Northeast Region. However, this proposed rule
would not have a significant economic impact because, if adopted, it
would not result in a decrease in gross revenues, result in significant
compliance costs, or cause businesses to cease operations. Many of
these small entities currently operate under existing restrictions
affecting vessel replacement, vessel upgrade, permit transfers, and
permit renewals that are more restrictive and more complicated than the
measures contained in this proposed rule.
Current restrictions governing these activities differ for each
vessel, depending upon the unique combination of permits which the
vessel possesses. There are currently four different sets of
regulations. This creates confusion and is inefficient when attempting
to sell, modify, or replace a fishing vessel. This proposed amendment
would reduce the number of sets of guidelines from four to one, and
these proposed guidelines are already applicable in the multispecies
and Atlantic sea scallop fisheries.
The proposed action would not result in a decrease in annual gross
revenues of more than 5 percent for 20 percent or more of the affected
small entities because the new requirements are generally more lenient
and less complicated than the existing array of regulations governing
permit-related activities. In addition, these requirements do not
impose compliance costs, such as gear purchases or direct restrictions
on fishing activities. If and when a vessel owner chooses to buy, sell,
upgrade, or replace a vessel then the regulations would affect them.
However, these actions would still be permissible and, with the
exception of upgrades in some fisheries, the regulations would be more
lenient. Because the proposed restriction on vessel upgrades is
difficult to quantify, NMFS is seeking comments to establish any
potential impacts that the restriction may create. Costs of production
and capital costs of compliance will not increase because the
regulations do not impose immediate compliance requirements.
[[Page 63439]]
Because this action, if adopted, would not have a significant
economic impact on a substantial number of small entities, an initial
regulatory flexibility analysis is not required.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number.
This rule contains a collection-of-information requirement subject
to the PRA. This collection-of-information requirement has been
submitted to OMB for approval. Vessel owners intending to replace
vessels, upgrade vessels, or obtain a CPH are required to complete an
application form. The estimated average response time is 3 hours for
applicants requesting replacements of vessels permitted for Mid-
Atlantic fisheries. For applicants requesting a history retention, the
estimated average response time is one- half hour per response. For
applicants requesting vessel specification upgrades, the estimated
average response time is 3 hours. For applicants requesting
replacements of undocumented vessels, the estimated average response
time is 3 hours.
This proposed rule also contains two collection-of-information
requirements previously approved under OMB control number 0648-0202.
The response time for a multispecies permit holder to request a change
in permit category is 5 minutes. The response time for a multispecies
permit holder to request a permit appeal in writing is 3 minutes. Send
comments regarding these burden estimates or any other aspect of the
data requirements, including suggestions for reducing the burden, to
NMFS and OMB (see ADDRESSES).
Public comment is sought regarding whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information has
practical utility, the accuracy of the burden estimate, ways to enhance
the quality, utility, and clarity of the information to be collected,
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology.
List of Subjects
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 649
Fisheries.
Dated: November 6, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 648 and 649
are proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 648.4 is amended by removing paragraph (a)(5)(ii);
redesignating existing paragraphs (a)(5)(iii), (a)(5)(iv), and
(a)(5)(v) as paragraphs (a)(5)(ii), (a)(5)(iii), and (a)(5)(iv)
respectively; revising paragraphs (a)(1)(i)(A) through (a)(1)(i)(C),
(a)(1)(i)(E), (a)(1)(i)(F), (a)(1)(i)(H), (a)(1)(i)(I)(2), (a)(1)(i)(J)
through (a)(1)(i)(L), (a)(2)(i)(B), (a)(2)(i)(H), (a)(3)(i) heading,
(a)(3)(i)(B), (a)(3)(i)(C), (a)(4)(i), (a)(5)(i), (a)(6)(i), (a)(7)(i);
and adding paragraphs (a)(1)(i)(M), (a)(2)(i)(L), (a)(2)(i)(M),
(a)(3)(i)(D) through (a)(3)(i)(H), and (a)(3)(i)(J) through
(a)(3)(i)(L) to read as follows:
Sec. 648.4 Vessel and individual commercial permits.
(a) * * *
(1) * * *
(i) * * *
(A) Eligibility. To be eligible to apply for a limited access
multispecies permit, as specified in Sec. 648.82, a vessel must have
been issued a limited access multispecies permit for the preceding
year, or be replacing a vessel that was issued a limited access
multispecies permit for the preceding year.
(B) Application/renewal restrictions. All limited access permits
established under this section must be issued on an annual basis by the
last day of the fishing year for which the permit is required, unless a
Confirmation of Permit History (CPH) has been issued as specified in
(a)(1)(i)(J) of this section. Application for such permits must be
received no later than 30 days before the last day of the fishing year.
Failure to renew a limited access permit in any fishing year bars the
renewal of the permit in subsequent years.
(C) Qualification restriction. Unless the Regional Administrator
determines otherwise, no more than one vessel may qualify, at any one
time, for a limited access permit based on that or another vessel's
fishing and permit history. If more than one vessel owner claims
eligibility for a limited access permit, based on one vessel's fishing
and permit history, the Regional Administrator will determine who is
entitled to qualify for the permit and any DAS allocation according to
paragraph (a)(1)(i)(D) of this section.
* * * * *
(E) Replacement vessels. To be eligible for a limited access
permit under this section, the replacement vessel must meet the
following criteria and any applicable criteria under paragraph
(a)(1)(i)(F) of this section:
(1) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel's baseline specifications, as
applicable.
(2) The replacement vessel's length, GRT, and NT may not exceed by
more than 10 percent the length, GRT, and NT of the vessel's baseline
specifications, as applicable.
(F) Upgraded vessel. A vessel may be upgraded, whether through
refitting or replacement, and still be eligible for or be eligible to
retain or renew a limited access permit, only if the upgrade complies
with the following:
(1) The vessels's horsepower may be increased, whether through
refitting or replacement, only once. Such an increase may not exceed 20
percent of the horsepower of the vessel's baseline specifications, as
applicable.
(2) The vessel's length, GRT, and NT may be increased, whether
through refitting or replacement, only once. Any increase in any of
these three specifications of vessel size may not exceed 10 percent of
the vessel's baseline specifications, as applicable. If any of these
three specifications is increased, any increase in the other two must
be performed at the same time. This type of upgrade may be done
separately from an engine horsepower upgrade.
* * * * *
(H) Vessel baseline specifications. The vessel baseline
specifications in this section are the respective specifications
(length, GRT, NT, horsepower) of the vessel that was initially issued a
limited access permit as of the date the initial vessel applied for
such permit.
(I) * * *
(2) The owner of a vessel issued a limited access multispecies
permit may request a change in permit category unless they are
otherwise restricted by paragraph (a)(1)(i)(I)(1) of this section.
[[Page 63440]]
For 1997 and beyond, the owner of a limited access multispecies vessel
eligible to request a change in permit category must elect a category
upon his/her application for a permit no later than 30 days prior to
the last day of the fishing year and will have one opportunity to
request a change in permit category by submitting an application to the
Regional Administrator within 45 days of issuance of the vessel's
permit. After 45 days have expired, the vessel must remain in that
permit category for the duration of the fishing year.
* * * * *
(J) Confirmation of permit history. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, must apply for and receive
a CPH if the fishing and permit history of such vessel has been
retained lawfully by the applicant. To be eligible to obtain a CPH, the
applicant must show that the qualifying vessel meets the eligibility
requirements, as applicable, in this part. Issuance of a valid CPH
preserves the eligibility of the applicant to apply for a limited
access permit for a replacement vessel based on the qualifying vessel's
fishing and permit history at a subsequent time, subject to the
replacement provisions specified in this section. If fishing privileges
have been assigned or allocated previously under this part, based on
the qualifying vessel's fishing and permit history, the CPH also
preserves such fishing privileges. A CPH must be applied for in order
for the applicant to preserve the fishing rights and limited access
eligibility of the qualifying vessel. An application for a CPH must be
received by the Regional Administrator no later than 30 days prior to
the end of the first full fishing year in which a vessel permit cannot
be issued. Failure to do so is considered abandonment of the permit as
described in paragraph (a)(1)(i)(K) of this section. A CPH issued under
this part will remain valid until the fishing and permit history
preserved by the CPH is used to qualify a replacement vessel for a
limited access permit. Any decision regarding the issuance of a CPH for
a qualifying vessel that has been applied for or been issued previously
a limited access permit is a final agency action subject to judicial
review under 5 U.S.C. 704. Information requirements for the CPH
application are the same as those for a limited access permit. Any
request for information about the vessel on the CPH application form
refers to the qualifying vessel that has been sunk, destroyed, or
transferred. Vessel permit applicants who have been issued a CPH and
who wish to obtain a vessel permit for a replacement vessel based upon
the previous vessel history may do so pursuant to paragraph
(a)(1)(i)(E) of this section.
(K) Abandonment or voluntary relinquishment of permit history. If a
vessel's limited access permit history for a particular fishery is
voluntarily relinquished to the Regional Administrator, or abandoned
through failure to renew or otherwise, no limited access permit for
that fishery may be reissued or renewed based on that vessel's history
or to any vessel relying on that vessel's history.
(L) Restriction on permit splitting. A limited access permit issued
pursuant to this section may not be issued to a vessel or its
replacement, or remain valid, if the vessel's permit or fishing history
has been used to qualify another vessel for another Federal fishery.
(M) Appeal of denial of permit--(1) Eligibility. Any applicant
eligible to apply for a limited access multispecies permit who is
denied such permit may appeal the denial to the Regional Administrator
within 30 days of the notice of denial. Any such appeal must be based
on one or more of the following grounds, must be in writing, and must
state the grounds for the appeal:
(i) The information used by the Regional Administrator was based on
mistaken or incorrect data.
(ii) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria.
(iii) The applicant has new or additional information.
(2) Appeal review. The Regional Administrator will appoint a
designee who will make the initial decision on the appeal. The
appellant may request a review of the initial decision by the Regional
Administrator by so requesting in writing within 30 days of the notice
of the initial decision. If the appellant does not request a review of
the initial decision within 30 days, the initial decision shall become
the final administrative action of the Department of Commerce. Such
review will be conducted by a hearing officer appointed by the Regional
Administrator. The hearing officer shall make findings and a
recommendation to the Regional Administrator which shall be advisory
only. Upon receiving the findings and the recommendation, the Regional
Administrator will issue a final decision on the appeal. The Regional
Administrator's decision is the final administrative action of the
Department of Commerce.
(3) Status of vessels pending appeal. A vessel denied a limited
access multispecies permit may fish under the limited access
multispecies category, provided that the denial has been appealed, the
appeal is pending, and the vessel has on board a letter from the
Regional Administrator authorizing the vessel to fish under the limited
access category. The Regional Administrator will issue such a letter
for the pendency of any appeal. Any such decision is the final
administrative action of the Department of Commerce on allowable
fishing activity, pending a final decision on the appeal. The letter of
authorization must be carried on board the vessel. If the appeal is
finally denied, the Regional Administrator shall send a notice of final
denial to the vessel owner; the authorizing letter becomes invalid 5
days after receipt of the notice of denial.
* * * * *
(2) * * *
(i) * * *
(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section.
* * * * *
(H) Vessel baseline specifications. See paragraph (a)(1)(i)(H) of
this section.
* * * * *
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(M) Percentage ownership restrictions. (1) For any vessel acquired
after March 1, 1994, a vessel owner is not eligible to be issued a
limited access scallop permit for the vessel if the issuance of the
permit will result in the vessel owner, or any person who is a
shareholder or partner of the vessel owner, having an ownership
interest in limited access scallop vessels in excess of 5 percent of
the number of all limited access scallop vessels at the time of permit
application.
(2) Vessel owners who were initially issued a 1994 limited access
scallop permit, or were issued or renewed a limited access scallop
permit for a vessel in 1995 and thereafter in compliance with the
ownership restrictions in paragraph (a)(2)(i)(M)(1) of this section,
are eligible to renew such permits(s), regardless of whether the
renewal of the permits will result in the 5- percent ownership
restriction being exceeded.
(3) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a vessel owned by a corporation, who
are partners (general or limited) to a vessel owner, or who, in any
way, partly own a vessel.
* * * * *
[[Page 63441]]
(3) * * *
(i) Moratorium permits.
* * * * *
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. The vessel baseline
specifications in this section are the respective specifications
(length, GRT, NT, horsepower) of the vessel as of [insert effective
date of final rule in the FEDERAL REGISTER].
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
* * * * *
(4) * * *
(i) Maine mahogany quahog permit. (A) A vessel is eligible for a
Maine mahogany quahog permit to fish for ocean quahogs in the Maine
mahogany quahog zone if it meets the following eligibility criteria,
and an application for a Maine mahogany quahog permit is submitted by
May 19, 1999:
(1) The vessel was issued a Federal Maine Mahogany Quahog
Experimental Permit during one of the experimental fisheries authorized
by the Regional Administrator between September 30, 1990, and September
30, 1997; and,
(2) The vessel landed at least one Maine bushel of ocean quahogs
from the Maine mahogany quahog zone as documented by fishing or
shellfish logs submitted to the Regional Administrator prior to January
1, 1998.
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
(M) Appeal of denial of a permit. (1) Any applicant denied a Maine
mahogany quahog permit may appeal to the Regional Administrator within
30 days of the notice of denial. Any such appeal shall be in writing.
The only ground for appeal is that the Regional Administrator's
designee erred in concluding that the vessel did not meet the criteria
in paragraph (a)(4)(i)(A) of this section. The appeal must set forth
the basis for the applicant's belief that the decision of the Regional
Administrator's designee was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator.
(3) The hearing officer shall make a recommendation to the Regional
Administrator.
(4) The Regional Administrator will make a final decision based on
the criteria in paragraph (a)(4)(i)(A) of this section and on the
available record, including any relevant documentation submitted by the
applicant and, if a hearing is held, the recommendation of the hearing
officer. The decision on the appeal by the Regional Administrator is
the final decision of the Department of Commerce.
(ii) [Reserved]
(5) * * *
(i) Loligo squid/butterfish and Illex squid moratorium permits.
(Illex squid moratorium is applicable from July 1, 1997, until July 1,
2002). (A) Eligibility. To be eligible to apply for a moratorium permit
to fish for and retain Loligo squid, butterfish, or Illex squid in
excess of the incidental catch allowance in paragraph (a)(5)(ii) of
this section in the EEZ, a vessel must have been issued a Loligo squid
and butterfish moratorium permit or Illex squid moratorium permit, as
applicable, in a previous year or be replacing a vessel that was issued
a moratorium permit for a previous year.
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
* * * * *
(6) * * *
(i) Moratorium permit--(A) Eligibility. To be eligible to apply for
a moratorium permit to fish for and retain scup, a vessel must have
been issued a scup moratorium permit in a previous year or be replacing
a vessel that was issued a scup moratorium permit for a previous year.
(B) Application/renewal restriction. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
* * * * *
(7) * * *
(i) Moratorium permits--(A) Eligibility. To be eligible to apply
for a moratorium permit to fish for and retain black sea bass in excess
of the possession limit established pursuant to Sec. 648.145 in the EEZ
north of 35 deg.15.3' N. Lat., the latitude of Cape Hatteras Light, NC,
a vessel must have been issued a black sea bass moratorium permit in a
previous year or be replacing a vessel that was issued a black sea bass
moratorium permit for a previous year.
(B) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section.
(C) Qualification restriction. See paragraph (a)(1)(i)(C) of this
section.
(D) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(E) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(F) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
(G) Consolidation restriction. See paragraph (a)(1)(i)(G) of this
section.
(H) Vessel baseline specifications. See paragraph (a)(3)(i)(H) of
this section.
[[Page 63442]]
(I) [Reserved]
(J) Confirmation of permit history. See paragraph (a)(1)(i)(J) of
this section.
(K) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(L) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of
this section.
* * * * *
3. Section 648.14 is amended by adding paragraphs (a)(114) and
(a)(115) to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(114) Fish for, possess, or land species regulated under this part
with or from a vessel issued a limited access permit under
Secs. 648.4(a)(1)(i), 648.4(a)(2)(i), 648.4(a)(3)(i), 648.4(a)(4)(i),
648.4(a)(5)(i), 648.4(a)(6)(i), or Sec. 648.4(a)(7)(i), that has had
the horsepower of such vessel or its replacement upgraded or increased
in excess of the limitations specified in Sec. 648.4(a)(1)(i)(E) and
(F).
(115) Fish for, possess, or land species regulated under this part
with or from a vessel issued a limited access permit under
Secs. 648.4(a)(1)(i), 648.4(a)(2)(i), 648.4(a)(3)(i), 648.4(a)(4)(i),
648.4(a)(5)(i), 648.4(a)(6)(i), or Sec. 648.4(a)(7)(i), that has had
the length, GRT, or NT of such vessel or its replacement upgraded or
increased in excess of the limitations specified in
Sec. 648.4(a)(1)(i)(E) and (F).
* * * * *
PART 649--AMERICAN LOBSTER FISHERY
1. The authority citation for part 649 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. Section 649.4 is amended by revising paragraph (b)(2)(i) and
adding paragraphs (b)(3)(iii), (b)(3)(iv), and (b)(3)(v) to read as
follows:
Sec. 649.4 Vessel permits.
* * * * *
(b) * * *
(2) * * *
(i) To be eligible to renew or apply for a limited access lobster
permit, a vessel or permit applicant must have been issued either a
limited access lobster permit for the preceding year or a confirmation
of permit history (CPH), or a vessel must be replacing a valid limited
access American lobster permit from the preceding year or permit
history confirmation. If more than one applicant claims eligibility to
apply for a limited access American lobster permit based on one fishing
and permit history, the Regional Administrator shall determine who is
entitled to qualify for the limited access permit or permit history
confirmation.
* * * * *
(3) * * *
(iii) Restriction on permit splitting. A limited access American
lobster permit may not be issued to a vessel or its replacement, or
remain valid, if a vessel's permit or fishing history has been used to
qualify another vessel for another Federal fishery.
(iv) Consolidation restriction. Limited access permits may not be
combined or consolidated.
(v) Confirmation of permit history. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, must apply for and receive
a CPH if the fishing and permit history of such vessel has been
retained lawfully by the applicant. To be eligible to obtain a CPH, the
applicant must show that the qualifying vessel meets the eligibility
requirements, as applicable, in this part. Issuance of a valid CPH
preserves the eligibility of the applicant to apply for a limited
access permit for a replacement vessel based on the qualifying vessel's
fishing and permit history at a subsequent time, subject to the
replacement provisions specified in this section. A CPH must be applied
for in order for the applicant to preserve the fishing rights and
limited access eligibility of the qualifying vessel. If fishing
privileges have been assigned or allocated previously under this part,
based on the qualifying vessel's fishing and permit history, the CPH
also preserves such fishing privileges. Any decision regarding the
issuance of a CPH for a qualifying vessel that has been applied for or
been issued previously a limited access permit is a final agency action
subject to judicial review under 5 U.S.C. 704. An application for a CPH
must be received by the Regional Administrator no later than 30 days
prior to the end of the first full fishing year in which a vessel
permit cannot be issued. Failure to do so is considered abandonment of
the permit as described in paragraph (q) of this section. A CPH issued
under this part will remain valid until the fishing and permit history
preserved by the CPH is used to qualify a replacement vessel for a
limited access permit. Information requirements for the CPH application
are the same as those for a limited access permit with any request for
information about the vessel being applicable to the qualifying vessel
that has been sunk, destroyed, or transferred. Vessel permit applicants
who have been issued a CPH and who wish to obtain a vessel permit for a
replacement vessel based upon the previous vessel history may do so
pursuant to paragraph (b)(1)(i)(D) of this section.
* * * * *
[FR Doc. 98-30294 Filed 11-12-98; 8:45 am]
BILLING CODE 3510-22-F
